Can a passenger get a DUI in California?

Posted on May 18, 2022

In California, generally speaking, an intoxicated passenger cannot be charged with DUI. However, there are certain scenarios where it could happen. These include situations where:

1. the drunk passenger helps steer the vehicle,
2. the drunk driver switches seats with the passenger, and/or
3. the arresting officer is not sure who drove the car.

Note that a passenger can also be charged with other alcohol or drug-related offenses when a car is pulled over for suspicion of a DUI offense. These include:

• underage drinking,
• open container of alcohol,
• underage possession of alcohol, and/or
• drug possession.

In California, the penalties for a DUI conviction may include:

• a misdemeanor charge,
• fines, and
• a driver’s license suspension by the DMV.¹

Can a passenger be charged with DUI if the passenger helps steer the car?

A DUI offense can occur if an intoxicated passenger is riding in a vehicle and helps steer it.

The law says that a person is “driving” a motor vehicle if the passenger touches the steering wheel or has control over the vehicle. This means that:

• if a passenger is an intoxicated person (or has a blood alcohol concentration of 0.08% or higher), and
• simply reaches over and helps steer the car (even if to avoid an accident),

the passenger can be charged with DUI. This is because the passenger:

• was intoxicated or under the influence, and
• technically “drove” the vehicle.

Note that the passenger, though, does have to be intoxicated or under the influence of alcohol or drugs for a DUI to occur. If a sober passenger touches a steering wheel, then no crime is committed – even if the driver is drunk.²

What happens if a drunk driver switches seats with a passenger?

If an intoxicated driver switches seats with a passenger prior to an officer reaching the vehicle, then technically the new “passenger” can be charged with DUI.

Consider, for example, a situation when Mark and his girlfriend, Kim, are both in a car. Mark is driving while intoxicated. Kim is sober and is the passenger. Mark sees police sirens in the rear-view mirror and pulls the auto to the side of the road. Prior to the moment when the officer reaches the vehicle, Mark, trying to avoid a DUI charge, switches seats with Kim and becomes the new passenger. Here, it is likely that the officer will see what is taking place in the car and still charge Mark with DUI, even though he is sitting in the passenger seat.³

What happens if an arresting officer is not sure who was driving a vehicle in a DUI case?

Sometimes a police officer may mistakenly charge a passenger with DUI if the officer does not know who was driving the automobile.

This sometimes happens when there has been an accident, because of a drunk driver, and the police arrive at the scene after the car is stopped. Here, if there were multiple people in the car and they have exited the vehicle before the police arrive, the authorities will not know for certain who was driving. This means an officer may mistakenly charge someone, such as the passenger, for the DUI offense.

Please note, however, that this mistake will typically be corrected after the police investigate matters. Or, after a skilled DUI defense attorney analyzes the facts of the case.

Can a passenger be charged with an alcohol or drug-related offenses when a car is pulled over for suspicion of a DUI offense?

After a car is stopped for suspicion of a DUI, a passenger can face criminal charges for an alcohol or drug related criminal offense.

This often occurs with passengers under the age of 21. Depending on the facts of the case, they can be charged with either:

• underage drinking,
• a violation of open container laws, or
• underage possession of alcohol.

In addition, if drugs are found in the vehicle, the passenger (and others in the auto) could be charged with drug possession.⁴

In California, what are the penalties for a DUI?

A first, second or third DUI offense in California is treated as a misdemeanor. The penalties for drunk driving may include:

• misdemeanor probation,
• fines,
• DUI school, and
• a driver’s license suspension (though it may be possible to continue driving if the defendant installs an ignition interlock device (IID) in the defendant’s cars).

These penalties will grow more severe under California law if either of the following is true:

• the defendant has prior DUIs on the defendant’s record at the time of the DUI arrest, or
• someone was injured as the result of the defendant driving while intoxicated.

Either of these could result in felony charges being filed or substantial jail time being imposed.⁵

Our DWI / DUI lawyers serve clients in Los Angeles and throughout the state of California. Our criminal defense attorneys can provide legal advice over the phone or in one of our law offices.

See our California DUI law firm’s related articles on California BAC legal limits, DUI breathalyzers / breath tests, public intoxication (PC 647f), reckless endangerment, DUI with child under 14 in car and child endangerment.

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